Weatherspoon v. LNU et al

Filing 120

ORDER (1) Overruling Plaintiff's 114 Objections; (2) Adopting the Magistrate Judge's 107 Report and Recommendation as the Order of the Court; and (3) Dismissing Without Prejudice Plaintiff's Claims Against Defendant Woern. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MORRIS WEATHERSPOON,
Plaintiff,

Case No. 14-cv-12789
Hon. Matthew F. Leitman

v.
GEORGE LNU, et al.
Defendants.
_________________________________/
ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF #114); (2)
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #107) AS THE ORDER OF THE COURT;
AND (3) DISMISSING WITHOUT PREJUDICE PLAINTIFF’S CLAIMS
AGAINST DEFENDANT WOERN
Plaintiff Morris Weatherspoon (“Weatherspoon”) is an inmate in the custody
of the Michigan Department of Corrections (the “MDOC”).

In this action,

Weatherspoon alleges, among other things, that a Defendant he identifies only as
“Woern” violated his Eighth and Fourteenth Amendment rights by acting with
deliberate indifference to his medical needs. (See Compl., ECF #1 at ¶ 12, Pg. ID
4.) The Court previously granted Weatherspoon’s request to proceed in forma
pauperis and repeatedly directed him to provide an address for Woern at which the
United States Marshals could serve Woern with the Complaint. (See, e.g., ECF
#101.) The Court also directed the MDOC, on two separate occasions, to provide
address information for Woern. (See, e.g., ECF ## 40, 88.) On December 21,
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2015, the MDOC informed the Court that it no longer employed Woern and that it
had “no address [for Woern] on file.” (ECF #98 at 1, Pg. ID 728.)
On January 11, 2016, the Magistrate Judge ordered Weatherspoon to show
cause why the Court should not dismiss his claims against Woern due to the
inability to serve Woern with the Complaint (the “Show Cause Order”). (See ECF
#101.) Weatherspoon responded to the Show Cause Order on January 29, 2016.
(See ECF #104.) He argued that despite his inability to serve Woern, his claims
against Woern should not be dismissed. (See id.)
The Magistrate Judge has now issued a Report and Recommendation
(“R&R”) in which he recommends that the Court dismiss the claims against Woern
due to Weatherspoon’s inability to timely serve Woern with the Complaint. (See
ECF # 107.) Weatherspoon has objected to the R&R. (See ECF #114.) He insists
that the MDOC is intentionally withholding Woern’s address information in order
to conceal Woern’s alleged misconduct. (See id.)
Under Federal Rule of Civil Procedure 4(m), a district court must dismiss an
action without prejudice if the plaintiff fails to properly serve a defendant within
90 days of filing the complaint (and fails to establish good cause for the failure).
Because Weatherspoon is proceeding in forma pauperis in this action (see ECF
#4), he was required to provide a correct address to the United States Marshals to
effectuate service on Defendant Woern. But Weatherspoon has failed to provide
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the United States Marshals or the Court with a current address for Defendant
Woern for over 18 months.

And Weatherspoon has provided no evidence

whatsoever that the MDOC has refused to provide Defendant Woern’s address as
part of a cover up.

Accordingly, IT IS HEREBY ORDERED that

Weatherspoon’s objections (ECF #114) to the R&R are OVERRULED.
IT IS FURTHER ORDERED THAT the R&R (ECF #107) is ADOPTED
as the Order of the Court and that Weatherspoon’s claims against Woern are
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 30, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 30, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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